The Georgia v. Russia (II) judgment handed down by the Grand Chamber of the European Court of Human Rights (ECtHR) on 21 January 2021 is of historic significance. Only the fourth inter-state complaint ever resolved by the Court, the judges found Russia responsible for several violations of the European Convention on Human Rights (ECHR) including unlawful killing, torture, arbitrary detentions, lootings and destruction of villages during the invasion of Abkhazia and South Ossetia in August 2008 and the ensuing armed conflict and occupation. The detailed judgment contributes to the historical record of the conflict and its human cost (p. 7 et seq.). After twelve long years of litigation, the judicial outcome has undoubtedly gone some way to ‘put[ting] right many human rights wrongs’ committed during the conflict (dissent Judge Grozev p. 168).
Regrettably the judgment will also go down in history for less inspiring reasons: namely, its contribution to the chaos and confusion in the Court’s already troubled jurisprudence on the ‘extra-territorial scope’ of the Convention — often referred to as ‘the jurisdiction question.’ The volume and stridency of the five partly dissenting opinions on the jurisdiction point alone attest to the extent of the controversy. These include Judge Albuquerque’s indictment of ‘[t]he morally and legally untenable position of the Court on the jurisdictional threshold’ (para. 22), predicting that ‘the Court will face a gargantuan task to restore the damage to its credibility caused by this judgment’ (para. 30). Immediate commentary has been similarly damning (e.g. here).
The cause of concern has been the Court’s majority finding that ‘military operations’ during ‘the active phase of hostilities’ in an international armed conflict (IAC) are beyond the ‘jurisdiction’ of the state, and hence the purview of the Court (para. 138). Referring to prior case law, it noted that ‘jurisdiction’ under the ECHR is ‘closely linked to the notion of “control”, whether it be “State agent authority and control” over individuals or “effective control” by a State over a territory’ (para. 136). It then leapt to the bald assertion that:
‘the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no “effective control” over an area as indicated above (see paragraph 126 above), but also excludes any form of “State agent authority and control” over individuals’ (para. 137).
As a result, serious allegations of unlawful killings of civilians during the first five days of the conflict were inadmissible, whereas “other events … including … during the occupation phase” (or spanning both phases) proceeded to a merits determination (para. 83).
This article highlights key aspects of the judgment, and raises concerns for the coherence of the Court’s jurisprudence and for the ability of the Convention to provide protection and oversight in situations where it is most needed. My analysis will identify the indeterminacy and irrelevance of distinctions drawn by the Court; the conflation and confusion of ‘jurisdiction’ with distinct questions (regarding evidence or applicable law); and the judgment’s potentially insidious policy implications.
Background: ‘The Jurisdiction question’
Without retracing the long and winding journey through ECtHR jurisprudence on ‘extra-territorial jurisdiction’ (see the Judgment paras 81 et seq.), a few words of background are due. The ECHR applies to those ‘within the jurisdiction of the state’ (Art. 1) and the scope of ‘jurisdiction’ determines the applicability of the Convention and the admissibility of a case before the Court. Unlike its counterparts at the UN Human Rights Committee, the African Commission on Human and Peoples’ Rights or the Inter-American Court of Human Rights which have addressed jurisdiction in General Comments and Advisory Opinions, ECtHR standards have developed in a contentious, case-by-case and somewhat fragmented way. The Court has carved out exceptions to what it sees as the ‘primarily territorial’ scope of the Convention, setting down tests that often reflected the particular facts before the Court, but which have often been criticized for a lack of overall coherence.
The prime case in point is the Bankovic judgment of 2001, referred to repeatedly in the Georgia v Russia judgment. Also a Grand Chamber judgment, it essentially imposed a limited ‘control of area’ requirement for ECHR obligations to arise abroad. On this basis the case against European NATO states for the bombardment of Belgrade during the Kosovo conflict was inadmissible, for lack of control by NATO states of Belgrade. In an all or nothing approach, the Court rejected the idea that the ECHR could be ‘divided and tailored’ to hold states responsible for their own conduct and the consequences of it within their control. That judgment triggered twenty years of academic critique and litigation to undo its ‘regrettable’ (Judge Albuquerque dissent para. 5), or even ‘ludicrous’ (Judge Loucaides cited in Albuquerque para. 7) effects.
The fact is that, as the Court recognizes in Georgia v Russia, the jurisprudence subsequently ‘evolved,’ the exceptions expanded. As the judgment reflects, it is no longer in dispute that there are now other relevant forms of control and bases of jurisdiction, including through the exercise of ‘state agent authority or control’ (Al-Skeini v UK, para 132). This jurisdictional nexus has been relied upon in many cases in an array of situations, including armed conflicts: where individuals were detained, transferred, tortured or shot by UK troops in context of armed conflict in Iraq (Al-Skeini v UK, para. 149), where the military opened fire from helicopters (Pad v Turkey, para. 54), or security forces shot into crowds (Andreou v Turkey, p. 11). Moreover, as explored in a different context, many other cases where states have exercised sovereign powers over rights of persons overseas have been admissible without discussing jurisdiction at all. This supports the point made in a joint partly dissenting opinion that the ‘list of typical situations in which a jurisdictional link arises is not exhaustive’ (dissenting Judges Yudkivska, Wojtyczek and Chanturia p. 188).
Thus, while the ECtHR’s approach has been ad hoc, controversial and more restrictive than its counterparts (see below), over time it has evolved significantly. The Court has embraced a broadening range of circumstances, including in conflict situations, where the exercise of state power or control created a sufficient ‘normative link’ (dissenting Judges Yudkivska, Wojtyczek, and Chanturia p. 191) between the individuals affected and the state. At a minimum, as the judgment recalls, the Convention’s jurisdiction covers ‘effective control of territory’ and the exercise of ‘state agent authority and control of individuals’. However, the jurisprudence took a perplexing turn with the Court’s application of that test in international armed conflict (IAC).
The Court’s approach to Jurisdiction in Georgia v Russia: chaos and conflict
Distinctions and Scope: Military operations during active hostilities versus ‘other events’? The Court’s restrictive approach to the application of what it presents as a two-part test – control of area or of persons – in IAC begins early in the judgment with the decision, on its own initiative, to draw a distinction that one judge criticized as ‘fallacy of methodology’ (Chanturia p. 236). The judgment states:
‘In the present case the Court considers that a distinction needs to be made between the military operations carried out during the active phase of hostilities and the other events which it is required to examine in the context of the present international armed conflict, including those which occurred during the “occupation” phase after the active phase of hostilities had ceased, and the detention and treatment of civilians and prisoners of war, freedom of movement of displaced persons, the right to education and the obligation to investigate’ (para. 83). [emphasis added]
Questions arise as to the nature of the distinction, and its significance for ‘jurisdiction.’ To begin with, what constitutes the ‘active phase’, and what this activity or temporal period contrasts with, is unclear. So far as the distinction is based on ‘phases’ of a conflict, this is factually artificial. This is borne out even by reference to the facts of this case alone, where the Court’s findings make clear that many of the violations established by the Court actually took place or began during the active phase. ‘Military operations’ does not clarify much as these take many forms in armed conflict, including during active hostilities. The Court suggests later that such operations ‘include armed attacks, bombing and shelling’ (para. 126), but armed attacks in turn can involve the use of force of diverse types, each involving different fact-specific forms of exercise of power and control over areas and individuals.
Killing vs. Other alleged violations? Despite various references to ‘phases of active hostilities,’ the Court’s distinction in fact only excluded from jurisdiction certain Article 2 claims (right to life) arising from ‘alleged attacks (bombing, shelling, artillery fire)’ during this active hostilities phase (para.51). Reading the judgment as a whole, the Court implicitly (and quite rightly) accepts that civilians detained, raped, beaten, shot dead in villages or whose homes were destroyed and looted, had sufficient nexus with the state for jurisdiction even during the ‘hostilities phase’ and despite the ‘context of chaos’ of armed confrontation (e.g. para 52 refers to these allegations arising ‘in particular… after 12 August’). The duty to investigate alleged violations was also admissible, even in respect of the right to life allegations during the ‘active phase’ (for more on this see Milanovic’s analysis).
The scope of the Court’s exclusion from jurisdiction may then be narrower than it first appears, covering only some allegations concerning loss of life. However, this, in turn, raises questions of principle and policy. Could the Court be taking a narrower approach to jurisdiction in relation to the ‘supreme right’, i.e. the right to life, and on what principled basis? Would mass detentions be covered by the ECHR, but killings not, and what are the implications for the right to life? Moreover, in e.g. Al‑Skeini v UK, it was clear that killing by state agents in IAC could give rise to such a link. This makes common sense. As Judge Albuquerque notes, ‘the shooting of an individual by state agents constitutes the ultimate form of exercise of control’ (dissent para. 9).
The right to life: isolated or large-scale protection? To distinguish prior cases where lethal force had constituted sufficient ‘control’ for jurisdiction, from the present case where it did not, the Court advanced another curious distinction. It suggested that where the force involved ‘isolated and specific acts involving an element of proximity’ (para. 132), jurisdiction arose; but, for ‘bombing and artillery shelling’ (para. 133) in this case, it did not. Excluding heavier weaponry or methods causing larger scale damage from jurisdiction is a dubious finding for a human rights court. A joint partial dissent provides this robust rebuke of the proximity test and this distinction:
‘We do not see why proximity should be relevant… More importantly, if jurisdiction has been established in respect of “isolated and specific acts”, it is obvious that the respondent State exercises jurisdiction within the meaning of Article 1 when it undertakes a large-scale operation involving innumerable acts with far-reaching consequences (argumentum a fortiori)’ (see dissent Judges Yudkivska, Wojtyczek, and Chanturia p. 192).
Abstractions and Assumptions: Chaos and Control in Armed Conflict
It is also methodologically remarkable that before addressing jurisdiction, the Court posed itself an apparently abstract exercise:
‘In the present case the Court is required to examine whether the conditions applied by the Court in its case-law to determine the exercise of extraterritorial jurisdiction by a State may be regarded as fulfilled in respect of military operations carried out during an international armed conflict’ (the Judgment para. 125). [emphasis added]
It answered that, as noted above, the very reality of armed confrontation and fighting between enemy military forces .. in a context of chaos’ meant there ‘is no “effective control” over an area [and] also excludes any form of “State agent authority and control” over individuals’ (para. 137).
One question is whether the Court is setting down a normative standard or a factual conclusion. If the former, what is exactly is its scope (mirroring questions regarding the distinction between ‘military operations’ in the ‘active phase’)? What is the normative relevance of the existence of an armed conflict, and IAC specifically, for the purposes of ‘jurisdiction’ (as opposed to applicable law/merits discussed below). Would jurisdiction be excluded on the same basis of chaos and confrontation in transnational NIAC for example?
If, however, establishing ‘jurisdiction’ based on ‘effective control’ is a factual question (as would seem the correct approach), it is striking that the factual analysis is wholly absent from the judgment. Instead, the Court makes what looks like blanket assertions of fact – a generalization based on empirical assumptions.
Affirming that state agent control over individuals is excluded when armed confrontations are underway is a bizarre claim. It is contradicted already by the facts of this very case where, as already noted, jurisdiction was accepted for some rights violations during the active phase of hostilities. It is contradicted by the Iraq cases, where similar arguments by the UK government were rejected. Moreover, as the dissenting judges note, it is at odds with the fact that the decision to go to war and its implementation are themselves the classic exercise of sovereign power, not – as the judgment implies – instantaneous acts that throw the state in question into a situation necessarily beyond its control (see para. 124; dissenting Judges Yudkivska, Wojtyczek and Chanturia p. 198). Whether the ‘context of chaos,’ which conjures up outdated images of battlefields lost in the fog of war, is apt for the wide range of contexts and military operations — kinetic, cyber and other — within interstate armed conflict today is even more doubtful. Finally, policy questions again arise as to the implications of excluding jurisdiction and oversight under the ECHR for as long as ‘fighting’ and ‘chaos’ (brought about by the state in question) endures.
Non-Derogation in IAC Implies No Jurisdiction? The judgment adds support for its restrictive approach to jurisdiction by reference to the fact that, in practice, states rarely derogate during IACs outside their own territory. It notes that ‘[i]n the Court’s view, this may be interpreted as The High Contracting Parties considering that in such situations, they do not exercise jurisdiction within the meaning of Article 1 of the Convention’ (para. 139).
However, in the real world there are many political and other explanations for that refusal to derogate (dissenting Judge Chanturia para. 18), and in any event this argument was explicitly rejected by the Court in Hassan v UK (paras 74-80, 101 and 107-110). There the majority Court found UK jurisdiction to arise — and the ECHR to apply alongside IHL — notwithstanding failure to derogate. Policy concerns also arise as to the impact of the Court’s approach on state’s willingness to derogate, as potentially ‘undermining the derogation mechanism’ itself (dissenting Judge Chanturia para. 19).
… and there were other factors: The Court states that it is ‘sensitive’ to the idea that its interpretation ‘may seem unsatisfactory to the alleged victims’ and territorial states (para. 140). It then sets down a hotchpotch of additional factors in an effort to justify or explain:
‘However, having regard in particular to the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances and the fact that such situations are predominantly regulated by legal norms other than those of the Convention (specifically, international humanitarian law or the law of armed conflict), the Court considers that it is not in a position to develop its case-law beyond the understanding of the notion of “jurisdiction” as established to date’ (para. 141).
These passages have drawn stinging rebukes in the partial dissents (e.g. dissenting Judge Lemmens para. 2; dissenting Judges Yudkivska, Wojtyczek and Chanturia para. 9 who were ‘simply astonished’). The factors raise some valid practical, evidentiary and normative challenges that need grappling with, but they are of dubious relevance to ‘jurisdiction’ and admissibility. Each factor is worth scrutinizing at in turn:
- Large number of alleged victims and magnitude of the evidence. As with ‘isolated acts and proximity’ noted above, it would be manifestly anomalous if the large number of victims were to justify not exercising jurisdiction.
- Difficulty in establishing the circumstances. Undoubtedly evidence gathering in international proceedings is complex, and the Court’s resources limited. However, as one dissent notes, it is inconceivable that evidentiary difficulties delimit jurisdiction (J. Chanturia paras 20-28). Other dissents note how evidentiary challenges can be met, such as ‘indicative incidents’ used in this judgment and elsewhere. The Court’s practice – from adjudicating hostilities in NIACs where individual applicants face as many, if not more, evidentiary challenges, or CIA rendition cases, among others – shows its ability to deal with complex evidence when committed to do so. Ultimately, the Court may reach the conclusion that, on available evidence, the facts are not established according to the relevant standard. This is distinct from ducking evidentiary challenges through jurisdictional findings.
- Predominantly regulated by IHL. Perhaps most confusing, internally inconsistent and troubling is the conflation of applicable law (and the role of IHL) with jurisdiction. The Court has often recognized that jurisdiction and applicable law/responsibility are separate questions. However, the Court (again) mixes them up in Georgia v. Russia. IHL is undoubtedly relevant to interpreting Convention rights in some armed conflict situations, as co‑applicable law (see below), particularly in relation to conduct of hostilities. Nevertheless, these are merits considerations, which the Court erroneously avoids engaging with by refusing to exercise jurisdiction.
Co-Applicable law: HR and IHL in Armed Conflict
The crux of the concern with this case is that it will limit the applicability of the ECHR, and the ability of the Court to exercise oversight, in armed conflict situations – where protection of persons and access to justice are often most elusive.
Co-applicability of IHRL and IHL in armed conflict, once a matter of hot dispute, is now well established in the jurisprudence of the ECHR and all other international and regional human rights bodies. This judgment recognises, as the Court has before, that the ECHR is in principle applicable in armed conflict situations alongside IHL. Indeed, the Court explicitly rejects the Russian government’s assertions that IHL displaces IHRL as the exclusive relevant body of law (paras 94-95). Regrettably, the jurisdictional threshold approach may limit the practical impact of positive developments in the Court’s jurisprudence on co-applicability, in as yet uncertain ways.
The Court’s approach to co-applicability (in the parts of the case that were admissible) is, however, encouraging. It notes that the ECHR is to be interpreted in harmony with IHL (para. 94), and that the Court considers the ‘interrelation between the two legal regimes…with regard to each aspect of the case and each Convention Article’ (para. 94). This approach points to how allegations of violations in armed conflict scenarios can and should be addressed: at the merits stage. In line with developments discussed more fully elsewhere (by me here and by others e.g. here), a nuanced co-application of human rights and IHL takes into account the ‘very realities’ of conflict to which the Court refers. In ‘conduct of hostilities’ situations, specific norms of IHL are given particular weight in the co-applicability calculus, while the interpretation of IHRL itself is deeply contextual, with a degree of inherent flexibility to take account of ‘contexts of chaos.’ There is no doubt that the existence of armed conflict, applicable IHL, active hostilities and contexts of chaos are all potentially relevant to the adjudication of responsibility in armed conflict situations. But they are not questions of jurisdiction.
Finally, it bears recalling that co-applicability of legal rules and jurisdiction of human rights bodies matters even where IHL undoubtedly applies, and may lead to the same outcome on particular issues. It matters especially in the absence of an IHL international complaints mechanism. And it matters because national justice is often obstructed in armed conflict related cases, as in this case (para. 322). The ICC’s role, to which the Court refers, is important but naturally limited. The Court overlooks the fact that restrictive approaches to jurisdiction in armed conflict by human rights tribunals, as in this case, may well obstruct victims’ only path to justice.
Conclusion: Implications and Interpretation?
The judgment has potentially serious, albeit as yet uncertain, ramifications for accountability and the rule of law in armed conflict. It appears to present a step back in areas where the law had evolved positively in recent years, notably jurisdictional scope and applicability in armed conflict. The judgment could even be construed as incentivizing ‘chaos’ and denial of military control, killings (rather than detention), remote large-scale killings rather than a targeted approach – an anomalous and most regrettable outcome for a human rights court.
A coherent approach to jurisdiction is overdue in the Strasbourg court. If it is to stay relevant and credible in the face of many transboundary violations facing humanity today (not least climate change, and the increasingly fluid nature of armed conflicts international or non-international), the Court needs a principled and flexible approach. This need screams louder in the wake of the Georgia v. Russia judgment. The Court has often interpreted the ECHR informed by the approach of other courts and bodies. It would do well to do so on jurisdiction. (See e.g. recent UNHRC GC36 on the right to life, where jurisdiction is derived from the states’ direct and foreseeable impact on the right, the African Commission GC3 in broadly similar terms, and the IACHR’s focus on causal effect). Unfortunately, the judgment goes in another direction, described as ‘promoting fragmentation in international law, but also pushing the Court to an extremely isolated position worldwide and thus discrediting its role as a human rights guarantor in Europe.’ (J. Albuquerque p. 205).
While the judgment is troubling, it is important to keep perspective. The Convention operates in a dynamic interpretative environment. The ECHR is a ‘living instrument’ which evolves as the human rights and ‘collective public order’ challenges on the continent and beyond evolve (p 241). There is no precedent as such, jurisprudence is not set in stone, and future judges (nationally and at the ECHR), parties to litigation and others will together shape the interpretation of this judgment and the direction of jurisprudence. It also remains to be seen how much of the apparently sweeping findings on jurisdiction are treated as standards of broader application, or case specific determinations, influenced by the particular nature of the facts or the litigation. Judgments that lead to arbitrary results, excessive uncertainty, or which preclude the Court from fulfilling its ‘essential protective purpose’ by creating a ‘vacuum of protection’ can, as we have seen from Bankovic, ‘evolve,’ come to be considered as ‘no longer valid law’ (Chanturia p. 225) and ultimately be ‘effectively overturned.’ The terms of the judgment and lengthy dissents provide ample tools for those other paths. There is reason to be confident that the Court will, eventually, shake off this albatross, as it has done in the past. It remains to be seen how quickly, and at what cost in the meantime.
Thanks to Fabricio Guariglia, Phil Leach and Noam Lubell for comments and to Eva Daniels for editorial assistance.